Some Who Decline an Optional Iris Photo Are Kept Longer in Jail, Critics Say

Some Who Decline an Optional Iris Photo Are Kept Longer in Jail, Critics Say

After her arrest at an Occupy Wall Street protest in December, Samantha Wilson expected to be booked, fingerprinted and subjected to a mug shot. But when a police officer raised a small device to her face and began photographing her eyes, she declined.

Ms. Wilson, 32, said her refusal resulted in a threat from the officer.

“He said: ‘It’s not really optional. It’ll take you longer to get out of here if you don’t do it,’ ” she recalled.

The New York Police Department began photographing the irises of people arrested in Manhattan in 2010; officials said then that the images would help prevent suspects from escaping. But the program drew criticism from criminal defense lawyers and civil liberties experts who expressed concern that it could infringe on individuals’ privacy, especially in cases in which the charges were eventually dropped.

More than a year later, as the program has been extended across the city, opponents have renewed their objections and accused officers of sometimes pressuring people to submit to the photographs — which are supposed to be optional — by keeping those who do not comply in custody longer.

Ms. Wilson’s lawyer, Rebecca Heinegg, said that her client was eventually released without the photograph being taken, but that she was held for about 36 hours, longer than usual.

“I am irate about it,” said Ms. Wilson, of Bedford-Stuyvesant, Brooklyn. “I hate when something is voluntary or optional, and they hide that for so long it becomes mandatory.”

Paul J. Browne, the Police Department’s chief spokesman, said that since the beginning of this year, the department had taken about 24,000 iris photographs. He added that he knew of no incidents in which defendants had been held longer than usual after refusing to allow their irises to be photographed.

The Police Department instituted the program after two episodes in 2010 in which prisoners arrested on serious charges escaped by posing at arraignment as defendants involved in minor cases. Now the iris photographs are used to check the identities of those appearing before a judge.

But confusion about whether the photographs are mandatory has extended to the bench. During the Jan. 29 arraignment of Kevin Jones, 57, on charges of obstructing governmental administration, Judge Abraham Clott, of Manhattan Criminal Court, twice told Mr. Jones’s lawyer that the iris photographs were compulsory.

Concern over the program has taken several forms. Some opponents object to the fact that it was instituted without public announcement or comment. Others fear that cataloging eye data could place the innocent under a lasting cloud of suspicion.

Steven Banks, the attorney in chief for the Legal Aid Society, said that when the program began, clients who did not submit to the photographs were processed normally. That changed recently, he said, and the police have delayed the arraignment of some Legal Aid Society clients who declined iris photographs.

“There appears to be a not-so-subtle switch in police practice,” Mr. Banks said. “It’s only a matter of time before we challenge this change in practice.”

Mr. Banks said it was problematic that the police were applying the program “without any legislative authorization to New Yorkers who may well be wrongfully accused of misconduct.”

Mr. Browne said the iris photographs were treated in the same manner as mug shots and were sealed or destroyed whenever the mug shots were sealed or destroyed. Mr. Banks said state law required that mug shots be destroyed whenever a case was resolved in favor of a defendant.

Meghan Maurus, a lawyer who has been helping coordinate the defense of people arrested in connection with Occupy Wall Street demonstrations for the National Lawyers Guild, said that dozens of the group’s clients had been held longer than usual after refusing iris photographs.

She said that she and other lawyers had drafted a habeas corpus petition that they could adapt on a case-by-case basis when clients were held past a certain length of time.

One such client was Claire Lebowitz, 28, an actress from Windsor Terrace, Brooklyn, who said she was arrested in Zuccotti Park on Jan. 10 and charged with trespassing, resisting arrest and obstructing governmental administration after lying on a bench. Ms. Lebowitz said that several officers told her that she would be held longer if she did not agree to an iris photograph.

A man who was arrested at the same time as Ms. Lebowitz and faced the same charges, Keegan Stephan, said that he received a similar warning. Mr. Stephan said that he agreed to the photograph because he did not want to be held longer; he was released after one night. Ms. Lebowitz said she was held a second night, then released, still without agreeing to an iris photograph.

“I felt it was really important for me to stand up for the right to say no while I still have it,” Ms. Lebowitz said. “Because in three months, we might not have it.”